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Tennessee Backs Drug-Use Tests In Public Schools

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Tennessee lawmakers have passed a bill that would permit school districts to force students suspected of abusing drugs to submit to drug testing.

Several districts across the country have adopted student drug-testing policies, but no state prior to the Tennessee lawmakers' April 29 vote had enacted one on a statewide basis. The Mississippi Senate approved a similar bill in March, but it died in the House education committee.

Although a spokesman for Gov. Ned R. McWherter said the Governor would not pass judgment on the bill until it was reviewed by his legal counsel and the state attorney general, observers say he is likely to sign it.

One lawmaker said privately last week that although many of his colleagues had reservations about the bill, they felt pressured to vote for it because this is an election year. The measure's sponsors, he contended, had characterized the issue as "simply being for or against drugs in schools.''

The bill was approved by votes of in the House and 27 to 0 in the Senate on the final day of the legislature's session.

It has been vigorously opposed by the American Civil Liberties Union, which says it may file suit challenging the law's constitutionality once a testing program has been adopted by a district.

A federal judge in Arkansas and a state judge in New Jersey have struck down district-level policies requiring all of a school's students to submit to urinalysis, saying they violated pupils' Fourth Amendment right to be free from unreasonable search and seizure.

But in February, a federal judge upheld an Indiana district's testing requirement directed primarily toward athletes, holding that participation in extracurricular activities is not a constitutionally protected right.

In a 1985 case, New Jersey v. T.L.O., which involved a search of a student's purse that turned up evidence of drug use, the U.S. Supreme Court held that school officials may search students if they have "reasonable suspicion'' that a school rule has been broken. But it added that such searches cannot be "excessively intrusive in light of the student's age and sex and the nature of the infraction.''

Next fall, the High Court will hear arguments in a case challenging drug-testing policies that affect public employees, such as teachers.

Bill's Provisions

Under the Tennessee measure, districts would not be forced to adopt drug-testing policies, but rather would be allowed to approve them if they wished. Students would have to be notified in writing at the time of enrollment that they could be subject to drug testing.

The bill stipulates that a student could be required to submit urine for testing only under the following "standards of reasonableness'':

  • A school policy has been broken.
  • The test will produce evidence that a rule has been broken "or will establish that a student either was impaired due to drugs or did not use drugs.''
  • The test advances the state's interest in maintaining order and discipline in schools.
  • The test result will not be used in a criminal prosecution.
  • The test is conducted in the presence of a witness.

Principals would have to notify at least one of the student's parents before the procedure, but would not have to obtain their consent. An accredited laboratory would have to conduct the tests, and a sample testing positive for the presence of drugs would have to be re-analyzed using a more sophisticated testing procedure to ensure against a false result.

The bill would leave it to districts to decide how to discipline students whose urine tests were positive. But it stipulates that those testing positive would have to be provided with drug counseling. Negative results would have to be expunged from the student's record.

Opposing Views of Law

Hedy Weinberg, executive director of the Tennessee branch of the ACLU, contended last week that the bill is so broadly worded that it would permit principals to force students to undergo testing "simply because they dress funny, have unusual hairstyles, or are 'troublemakers.'''

"Unfortunately, we think we'll see a lot of abuses under this policy,'' Ms. Weinberg said. "There is no question that a student should not be arbitrarily identified and forced to take a test, and this bill has the potential of doing just that.''

That assessment was sharply disputed by state Senator Tommy Burke, the bill's chief sponsor in the Senate.

"The whole thrust of this legislation is to give the folks who run the schools the ability to control drugs in their schools,'' he said. "I worked very closely with the state attorney general and he says this is a bill that he can defend in court if it comes to that.''

Officials in Attorney General Michael Cody's office did not respond to a request for comment on Mr. Burke's assertion.

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